Tag Archives: Contraception Mandate

I confess I’ve been surprised at the vitriol last month’s decision in Hobby Lobby has drawn from the Left. To me, the case seems a narrow victory in favor of religious freedom. But critics, including some on the Court, see the case as a major defeat for freedom and equality. In their view, the Court has allowed religious zealots–for, in truth, who else would object to the contraceptives at issue?–to impose their beliefs and affect the life choices of their women employees. Once again, the forces of regression have attempted to coerce women. And the Court has allowed it.

This is perplexing. It’s worth repeating: Hobby Lobby objected to covering only four contraceptives out of the 20 HHS mandated. It did not threaten to fire or discipline women employees who used one of the contraceptives; it objected only to paying for the contraceptives itself. Moreover, the Hobby Lobby Court endorsed an accommodation that allows employees who wish to obtain the contraceptives to do so at no cost. In short, no Hobby Lobby employee who wishes to use one of the four contraceptives will be prevented from doing so.

So why all the vitriol? Why all the talk of coercion? In a very insightful post at Bloomberg View, blogger Megan McArdle (left) explains the situation. In fact, it’s one of the better posts I’ve seen on the controversy.

McArdle says three factors are involved. First, the Left cannot understand why religion should merit this sort of deference. Although “the religious right views religion as a fundamental, and indeed essential, part of the human experience,” she writes, “the secular left views it as something more like a hobby.” For the Left, therefore, “it’s as if a major administrative rule was struck down because it unduly burdened model-train enthusiasts.” In fact, although McArdle doesn’t put it this way, the Court has allowed religion to interfere with sex, which really is “a fundamental, and indeed essential, part of the human experience.” It just seems crazy.

Second, about coercion. From the classical liberal perspective, in which rights are principally negative rights, the Hobby Lobby case does not involve coercion. As McArdle writes, “How is not buying you something equivalent to ‘imposing’ on you”? But if we consider that our society confers many positive rights as well as negative ones, the situation becomes much more complicated:

“Do what you want, as long as you don’t try to force me to do it, too” works very well, which is why this verbal formula has had such a long life. But when you introduce positive rights into the picture, this abruptly stops working. You have a negative right not to have your religious practice interfered with, and say your church forbids the purchase or use of certain forms of birth control. If I have a negative right not to have my purchase of birth control interfered with, we can reach a perhaps uneasy truce where you don’t buy it and I do. But if I have a positive right to have birth control purchased for me, then suddenly our rights are directly opposed: You have a right not to buy birth control, and I have a right to have it bought for me, by you.

Third, she writes, the classically liberal distinction between the state and civil society has broken down. Classical liberalism accepted a large public space that did not belong to the government. Now, however,

For many people, this massive public territory is all the legitimate province of the state. Institutions within that sphere are subject to close regulation by the government, including regulations that turn those institutions into agents of state goals — for example, by making them buy birth control for anyone they choose to employ. It is not a totalitarian view of government, but it is a totalizing view of government; almost everything we do ends up being shaped by the law and the bureaucrats appointed to enforce it. We resolve the conflict between negative and positive rights by restricting many negative rights to a shrunken private sphere where they cannot get much purchase.

In this context, it’s possible to believe that Hobby Lobby’s founders are imposing their beliefs on others, because they’re bringing private beliefs into the government sphere — and religion is not supposed to be in the government sphere. It belongs over there with whatever it was you and your significant other chose to do on date night last Wednesday. In that sphere, my positive right to birth control obviously trumps your negative right to free exercise of religion, because religion isn’t supposed to be out here at all. It’s certainly not supposed to be poking around in what’s happening between me and my doctor, which is private, and therefore ought to operate with negative-right reciprocity: I can’t tell you what birth control to take, and you can’t tell me.

McArdle agrees with the Hobby Lobby decision, by the way (as do I), which makes her willingness to see things from the opposite perspective all the more welcome. Read the whole thing.

The battle over the ACA’s Contraception Mandate continues. Yesterday, the Supreme Court granted a temporary injunction to Wheaton College, a religious nonprofit that is challenging the mandate in federal court. As a religious nonprofit, Wheaton qualifies for a regulatory accommodation. It can avoid the mandate by completing a form stating that it opposes covering contraceptives for its employees and giving this form to its third-party plan administrator; the administrator must then provide contraceptive coverage to the employees at its own expense. Wheaton objects that completing the form and submitting it to the administrator would make it complicit in providing coverage for contraceptives, which it opposes on religious grounds. As a consequence, Wheaton argues, the accommodation itself violates RFRA.

Yesterday, by 6-3 vote, the Court ruled that the government may not enforce the mandate against Wheaton pending final disposition of Wheaton’s legal challenge. As a result, until the case is resolved, Wheaton need not complete the form or provide it to the plan administrator. The government, which obviously knows about Wheaton’s challenge, may arrange contraceptive coverage for Wheaton’s employees in the meantime. The Court expressly stated that its grant of a temporary injunction “should not be construed as an expression of the Court’s views on the merits” of Wheaton’s challenge.

Justice Sotomayor, joined by Justices Ginsburg and Kagan, dissented. Her dissent is puzzling. On the one hand, she makes a valid point about the standard for granting this sort of injunction. Traditionally, a high bar exists. The Court will grant an injunction only if the legal rights at issue seem “indisputably clear.” At this point, it’s hard to say that about Wheaton’s claim. There are arguments on both sides and, as Justice Sotomayor points out, the district court hasn’t yet determined the facts and adjudicated the case.

But Justice Sotomayor didn’t stop there, and the rest of her opinion is unfortunately problematic. Here are three quick examples:

Internal Inconsistency: Notwithstanding her complaint that the Court had preempted the trial judge’s adjudication of the merits of Wheaton’s claim, Justice Sotomayor presumes to decide the merits herself. “Wheaton has not stated a viable claim under RFRA,” she writes. That seems rather a prejudicial statement, especially as Wheaton’s case, or one very like it, will undoubtedly reach the Court soon. Besides, the Court expressly stated that it wasn’t ruling on the merits of Wheaton’s claim. One should note that, later in her dissent, Justice Sotomayor says only that “Wheaton’s claim is likely to fail.” So perhaps her first statement was just a little careless. But one expects more in a Supreme Court opinion.

Unfair Criticism: Justice Sotomayor sharply criticizes the Court for going back on its word earlier this week in Hobby Lobby. In Hobby Lobby, the Court indicated that the accommodation is a less restrictive means of promoting the government’s interest in women’s health than the mandate itself. If the accommodation is an acceptable alternative in Hobby Lobby, she asks, why not in this case? This criticism is unfair. The Hobby Lobby Court didn’t say the accommodation is the least restrictive means of promoting the government’s interest, only that it is a less restrictive means than the mandate itself. True, the Court’s language in Hobby Lobby was a little opaque. But it’s wrong to suggest the Court is being sneaky or indecisive.

Pot and Kettle: You’d hardly know it from reading Justice Sotomayor’s opinion, but last January she herself joined the Court in granting a similar injunction to another religious nonprofit challenging the mandate, the Little Sisters of the Poor. In a footnote in yesterday’s opinion, Justice Sotomayor tries to distinguish the January case, but not very convincingly. The Little Sisters’ third-party administrator wasn’t going to cover contraceptives anyway, she writes, so, unlike Wheaton’s employees, the Little Sisters’ employees had nothing to lose. But does anyone think Wheaton’s employees will lose contraceptive coverage during the course of this litigation? Both Wheaton’s third-party administrator and the government are aware of the situation and will undoubtedly make such coverage available.

As I say, Justice Sotomayor could simply have discussed the high standard for a temporary injunction and left it there; that would have made for a much stronger opinion. As it is, her dissent suggests a level of frustration that the Court’s ruling yesterday really doesn’t merit. Perhaps Justice Sotomayor knows something she’s not saying about how the Justices will likely decide the next challenge to the mandate that reaches them.

I have a comment on the Hobby Lobby case over at the Liberty Fund’s blog in which I offer some speculations about the case (I do not know that they are “deeper meaning” speculations; they’re just some thoughts). There you will also see other good comments on the case by former CLR Forum guest Steve Smith, John McGinnis, Peter Lawler (with whom I strongly agree about judicial minimalism), and Hadley Arkes.

Like this:

In our latest podcast, Mark and I discuss yesterday’s decision in Burwell v. Hobby Lobby Stores, Inc., the contraception mandate case. We summarize and explain the background, the holding, and the reasoning of the case. We also consider possible implications for future religious freedom challenges.

That’s my first read on today’s opinion in the Hobby Lobby case: narrow and pretty much as expected. Indeed, Justice Alito’s opinion for the Court says as much (“our holding is very specific”). It’s a 5-4 decision; a 5-2 decision on one important point. Still, a win’s a win, and Hobby Lobby, its lawyers, and those who filed amicus briefs in its behalf have a right to be pleased–as do all those who value religious freedom.

Some first impressions:

The Court does not address Hobby Lobby’s First Amendment claims; Hobby Lobby wins on RFRA grounds. No surprise there.

In holding that a for-profit corporation can exercise a religion for RFRA purposes, the Court takes the route that Chief Justice Roberts suggested at oral argument. It expressly limits its holding to closely-held corporations like Hobby Lobby and declines to discuss whether large, publicly traded corporations also can exercise a religion for RFRA purposes. That, as lawyers say, is a question for another day. (Self-promotion alert: this is what I predicted). The vote was 5-2 here; two dissenters, Justices Breyer and Kagan, would not have reached the issue.

The Court makes clear its ruling does not mean it will necessarily rule the same way in other cases where employers seek relief under RFRA, for example, where employers object to covering immunizations. Different governmental interests could be involved in those cases, the Court says.

The Court goes out of its way to say that its holding would not allow employers to justify racial discrimination on religious grounds. It says nothing about other sorts of discrimination, however. Surely this is intentional. As everyone knows, a major lurking issue is whether RFRA allows employers to discriminate on the basis of sexuality, especially homosexuality. The Court obviously wishes to avoid any allusions to that issue–perhaps to keep Justice Kennedy on board. The dissent does raise the issue, though.

The qualifications in the Court’s opinion are obviously meant to answer the dissent’s “parade of horribles.” Seems a pretty good answer to me–but the dissenters are not impressed. The Court’s logic extends to publicly traded corporations, Justice Ginsburg writes, and there is little doubt, notwithstanding the Court’s reassurances, that RFRA claims will “proliferate” in future. In particular, the dissent raises the issue of religiously-based objections to sexuality. As I say, the Court studiously avoids that issue.

In its least-restrictive means analysis, the Court notes that an accommodation of the sort the government has offered to certain religious non-profits would have achieved the government’s end in this case as well, and would have imposed less on Hobby Lobby’s religious exercise. That is, an alternative to the mandate is available. Is the Court hinting at what it thinks about the Little Sisters of the Poor case? I don’t think so; the Court went out of its way to reserve that issue. But the language here is a bit opaque and may cause trouble in future.

Not clear what the point of Justice Kennedy’s concurrence is, except to highlight that he sees this as a close case, to say nice things about the dissent, and to expound a little more about his view that religious liberty is about protecting people’s “dignity and … striving for a self-definition shaped by their religious precepts.”

We’ll have further analysis here at CLR Forum as we digest the opinion a little more. But, bottom line: a narrow decision and a win for religious liberty.

At the Religion News Service site, Cathy Lynn Grossman discusses the overheated rhetoric about for-profit corporations in the Contraception Mandate case, quoting my recent post on the subject at the Cornerstone site. As I’ve said, the Court could easily avoid the slippery slope by limiting its holding to close corporations like Hobby Lobby itself. Stay tuned — we’ll know pretty soon.

Cornerstone has published a short essay of mine on whether a corporation like Hobby Lobby qualifies as a person for purposes of RFRA. Relying on a comment from Chief Justice John Roberts at oral argument, I suggest that the Court may draw a distinction, for RFRA purposes, between large, publicly-held corporations and small, privately-held corporations like Hobby Lobby itself:

In truth, there is something very odd in the notion that a large, publicly-traded corporation with thousands of institutional shareholders around the world—Exxon-Mobil, for example—has religious scruples that guide its conduct. (Most Exxon-Mobil shareholders, I think, would be deeply surprised.) Large, publicly-traded corporations exist principally to make profits for the shareholders, who remain passive with respect to the corporation’s day-to-day operations. Religion is the farthest thing from their minds.

Moreover, if such corporations could exercise a religion, chaos could result. How would we determine when a corporation has a belief, Justice Sotomayor asked? Which of the thousands of shareholders would be entitled to raise their religious scruples? Would the majority of shareholders—51%—decide the matter for everyone else? What about the minority shareholders who object?

On the other hand, it isn’t strange to think that some for-profit corporations might exercise religion. As law professors Alan Meese and Nathan Oman argue in a recent essay in the Harvard Law Review, most American corporations are small, private firms with a only a handful of shareholders. In such corporations, the shareholders take great interest in day-to-day operations and may run their businesses with religious convictions in mind.

Alan Meese and Nate Oman, both of William and Mary, have written an exceptionally lucid essay in the Harvard Law Review Forum on one of the main issues in Hobby Lobby: whether a for-profit corporation can qualify as a person for purposes of RFRA. It’s one of the best things on Hobby Lobby I’ve read and I recommend it to people trying to make sense of the issue.

Meese and Oman make three big points. First, closely-held corporations like Hobby Lobby fit naturally within RFRA’s language. Second, there is nothing unusual about closely-held corporations that embody shareholders’ religions. Many such firms exist, and they do not violate some elementary principle of corporate law. Third, limiting the exercise of religion to natural persons mistakes an important goal of religious freedom. “[R]eligious freedom is broader than an individualist concern with personal rights,” they explain. “Rather, it is about limiting the ability of the state to regulate a particular kind of conduct–religious exercise–even when corporate bodies engage in that conduct.”

To me, the second point is the most suggestive for the outcome of Hobby Lobby. Most people think of corporations as large, publicly-traded firms with thousands of passive shareholders who have little to do with day-to-day operations: Exxon Mobil. It would be strange for such a corporation to exercise a religion. But most corporations, like Hobby Lobby itself, are small, private firms with a handful of shareholders. It’s not at all strange to think that the five owners of Hobby Lobby could legitimately want to run their corporation in a way that advances their religious values.

Meese and Oman argue against drawing a distinction, for RFRA purposes, between large corporations like Exxon Mobil and close corporations like Hobby Lobby. But the distinction could be a way for the Court to avoid practical difficulties. The Court could hold that close corporations like Hobby Lobby are RFRA persons and save the question of large corporations for another day. Indeed, Chief Justice Roberts hinted at that outcome during oral argument.

We’ll see what the Court decides. Meanwhile, Meese and Oman have written a very worthwhile essay. You can read it here.

Next month, St. Augustine’s Press will publish Contraception and Persecution by Charles Rice (University of Notre Dame Law School). The publisher’s description follows.

“Contraceptive sex,” wrote social science researcher Mary Eberstadt in 2012, “is the fundamental social fact of our time.” In this important and pointed book, Charles E. Rice, of the Notre Dame Law School, makes the novel claim that the acceptance of contraception is a prelude to persecution. He makes the striking point that contraception is not essentially about sex. It is a First Commandment issue: Who is God? It was at the Anglican Lambeth Conference of 1930 when for the first time a Christian denomination said that contraception could ever be a moral choice. The advent of the Pill in the 1960s made the practice of contraception practically universal. This involved a massive displacement of the Divine Law as a normative measure of conduct, not only on sex but across the board. Nature abhors a vacuum. The State moved in to occupy the place formerly held by God as the ultimate moral Lawgiver. The State put itself on a collision course with religious groups and especially with the Catholic Church, which continues to insist on that traditional teacher. A case in point is the Obama Regime’s Health Care Mandate, coercing employees to provide, contrary to conscience, abortifacients and contraceptives to their employees. The first chapter describes that Mandate, which the Catholic bishops have vowed not to obey. Rice goes on to show that the duty to disobey an unjust law that would compel you to violate the Divine Law does not confer a general right to pick and choose what laws you will obey. The third chapter describes the “main event,” which is the bout to determine whether the United States will conform its law and culture to the homosexual (LGBTQ) lifestyle in all its respects. “The main event is well underway and LGBTQ is well ahead on points.” Professor Rice follows with a clear analysis of the 2013 Supreme Court decision on same-sex marriage. Part II presents some “underlying causes” of the accelerating persecution of the Catholic Church. The four chapter headings in this part outline the picture: The Dictatorship of Relativism; Conscience Redefined; The Constitution: Moral Neutrality; and The Constitution: Still Taken Seriously? The answer to the last question, as you might expect, is: No. Part III, the controversial heart of the book, presents contraception as “an unacknowledged cause” of persecution. The first chapter argues that contraception is not just a “Catholic issue.” The next chapter describes the “consequences” of contraception and the treatment of women as objects. The third chapter spells out in detail the reality that contraception is a First Commandment issue and that its displacement of God as the ultimate moral authority opened the door for the State to assume that role, bringing on a persecution of the Church. The last chapter, “A Teaching Untaught,” details the admitted failure of the American Catholic bishops to teach Pope Paul VI’s 1968 encyclical, Humanae Vitae. But Rice offers hope that the bishops are now getting their act together Part IV offers as a “response” to the persecution of the Church three remedies: Speak the Truth with clarity and charity; Trust God; and, most important, Pray. As the last sentence in the book puts it: “John Paul II wrote in a letter to U.S. bishops in 1993: ‘America needs much prayer – lest it lose its soul.’” This readable and provocative book is abundantly documented with a detailed index of names and subjects.

In our most recent podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss last week’s oral argument in Sebelius v. Hobby Lobby, the Contraception Mandate case. We address the background of the litigation, the rhetorical strategies adopted by each side, and the major doctrinal questions the Court will need to resolve. We also make predictions about how the Justices will ultimately rule. The podcast will be useful for students and others looking for an introduction to this extremely important case.